Defending Burglary Charges
byJill Paperno, Second Assistant Monroe County Public Defenderand Brian Shiffrin The Monroe County District Attorney usually indicts burglaries using the language that the defendant “entered or remained” unlawfully in the building or dwelling. Yet in 1989, in People v Gaines (74 NY2d 358 [1989]), a case prosecuted by the Monroe County District Attorney, the Court of Appeals held that entering burglaries are actually quite distinct from remaining burglaries and that one cannot simultaneously engage...
read moreLeave to Appeal Granted on Issue of Permissible Limits of Police Deception During Interrogation
Last week, Jim Eckert posted (see) on the conflicting decision of the Appellate Divisions for the Second and Third Department as to the limits on permissible police deception during interrogation. In both cases, the police had purposely misled a suspect into believing that the person the suspect was accused of assaulting was alive. In People v Thomas (93 AD3d 1019 [3d 2012]), Mr. Thomas was suspected by police in a shaken baby case. Police...
read moreNew York Court of Appeals Determines Who Decides Whether to Request that the Jury Consider a Lesser Included Offense – Counsel or Defendant
In People v Colville (2010 NY Slip Op 07185 [2d Dept 10/5/10]) the Appellate Division, Second Department conducted a thorough review of the cases and commentaries on the question of whether the decision to have the jury consider a lesser included offense is a fundamental one to be made by the defendant or a strategic or tactical one for counsel. As the Court noted Having accepted the assistance of counsel, a defendant retains authority...
read moreBias is Like Pregnancy; Admission for Context is Not Admission for Truth
In reversing a murder conviction upon finding two different reversible errors, the New York Court of Appeals in People v Harris (_NY3d_, 2012 NY Slip Op 06990, 3/18/201) clarifed the law in two respects. First, the Court made clear that just as one cannot be a little pregnant, a prospective juror cannot have a little bias and still be qualified to serve. In Harris a prospective juror instated that that she had “an opinion...
read moreImportant Decision by the Second Circuit Court of Appeals Addressing the Reliability of an In-Court Identification
In Young v. Conway (2d Cir. 10/16/2012), in affirming the granting of a writ of habeas corpus and the reversal of a New York conviction, the United States Court of Appeals for the Second Circuit addressed the reliability of eyewitness identification when it ruled Tuesday that defendant Rudolph Young’s constitutional rights were violated by the admission of in court identification testimony after evidence regarding a lineup identification had been suppressed as the product of...
read more
